Discovery: Controlling Abuse of Discovery (Yeazell)



Civ Pro §B Maranville

Discovery: Controlling Abuse (Yeazell, p. 547, Supp. pp. 433-4 )

Answers

Question 1: Rules: Under Rule 37(a)(2)(B) if a party “fails to answer an interrogatory”, the other party may move to compel an answer, but must include “a certification that the movant has in good faith attempted to confer with the . . . party failing to make the discovery in an effort to secure the information or material without court action.” Application: Baxter Corp. has failed to answer an interrogatory

Conclusion: Arthur should confer with the opposing party and then, if necessary, move to compel answers under Rule 37(a).

Question 2: Rules: First, if a party has to compel discovery, under Rule 37(a)(4) the court shall award expenses of making the motion, including attorney’s fees to the successful moving party unless 1) the party didn’t try to resolve the dispute informally or 2) the objection was substantially justified. (Lawyers often refer to receipt of expenses as “terms”.)

Second, Rule 26(g), added in 1983, suggests that where the requests in question were clearly appropriate, a judge might impose sanctions under 26(g)(3) even without an order to compel.

Third, if, after being ordered to answer, Baxter still refuses, Arthur can also request any of the wide range of sanctions under Rule 37(b)(2).

Application: Baxter initially refused to answer an interrogatory. Assuming that they continue to refuse after consultation, necessitating

Conclusion: The court will grant sanctions, if a motion if a motion to compel is brought and won, or if Baxter defies an order to compel. The court might grant sanctions for the initial refusal, but that is less likely.

Question 3: Rule: Under Rule 37(d)(1) a party who fails to attend a properly noticed deposition is subject to the sanctions set out in 37(b)(2)(A)-(C).

Application: Alice failed to show up for her deposition.

Conclusion: Courts routinely award the costs of the failed deposition.

Question 4: Rule: Under the last sentence of Rule 37(d), a party must move for a protective order under Rule 26(c), if necessary after consulting with opposing counsel and informally requesting a change in the place of deposition, or failure to attend their own deposition will not be excused.

Application: Alice Arthur failed to show up for her deposition and did not request a different location, or move for a protective order.

Conclusion: If Arthur has no other excuse that would make the failure to attend “substantially justified” under the last sentence of the first paragraph of Rule 37(d), the court should award costs and fees. (Note that if Baxter intentionally scheduled the deposition inconveniently, that would be a violation of Rule 26(g)(2).) Attorneys typically consult each other regarding scheduling of depositions in order to avoid requests for postponement on grounds of scheduling conflicts.

Question 5: Rule: Under Rule 30(d)(2), the court must authorize a deposition in excess of the presumptive seven hours “if the deponent or another person . . impedes . . . the examination.” Although Rules 26(c) and 37(a)(1), which require the parties to attempt to resolve discovery disputes informally, are not directly on point, a court would likely expect informal consulation.

Application: Baxter needs more time for the deposition, because Arthur’s attorney has delayed progress of the deposition by making numerous objections. Thus, assuming that this is apparent to the judge, Baxter should be able to get additional time for the deposition. In order to ensure that the judge gets it, Baxter should draw attention to the lawyer’s behavior as it unfolds so the concern is stated in the transcript of the deposition and again in response to the request to end the deposition.

Question 6: Rule: Under Rule 26(g)(2)(C), a lawyer must certify that both discovery requests and responses are “not unreasonably or unduly burdensome or expensive, given the needs of the case.” A party who is suffering “undue burden or expense” may file a protective order under Rule 26(c), and the court may impose sanctions under 26(g)(3) if the certification is made without “substantial justification.”

Application: Arthur believes that Baxter has made both requests and responses that violate the certification requirement, so can properly move for a protective order. How likely a judge is to limit discovery, or impose sanctions varies considerably. One of the major challenges of modern discovery is controlling this type of behavior.

Question 7: Rule: Under Rule 26(b)(2)(iii), the court has the authority to enter orders limiting discovery in light of “the amount in controversy” and other factors. Under Rule 26(c) the court may enter protective orders to avoid “undue burden or expense”.

Application: Extensive discovery costing over $10,000 is not justified by the amount at stake here, a $5,000 counterclaim, so Arthur can file a motion to limit discovery, or for a protective order. But note that getting the order may itself be expensive, depending on how receptive the judge is to such a request.

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